Justification

Protection of Property

courtmartialdefenselawyers10.58.16 2Use of non-deadly force

Reasonable, non-deadly force may be used to protect personal property from trespass or theft.

United States v. Regalado, 33 C.M.R. 12 (C.M.A. 1963). The Court held that one lawfully in charge of premises may use reasonable force to eject another, if the other has refused an oral request to leave and a reasonable time to depart has been allowed.

United States v. Hines, 21 C.M.R. 201 (C.M.A. 1956). The Court concluded that with regard to on-post quarters, commander on military business is not a trespasser subject to defendant’s right to eject.

United States v. Gordon, 33 C.M.R. 489 (A.B.R. 1963. The Court found that the necessity to use force in defense of personal property need not be real, but only reasonably apparent.

United States v. Adams, 18 C.M.R. 187 (C.M.A. 1955). The Court considered whether a soldier has an obligation to retreat from his tent when that is the place in which he or she was attacked. The Court held that when a soldier is in his home, the soldier has retreated as far as the law requires. Whatever the name of his place of abode, it is his sanctuary from unlawful intrusion and he is entitled to stand his ground against a trespasser, to the same extent that a civilian is entitled to stand fast in his civilian home); see also United States v. Lincoln, 38 C.M.R. 128 (C.M.A. 1967); see generally Peck, The Use of Force to Protect Government Property, 26 Mil. L. Rev. 81 (1964).

United States v. Wilson, 7 M.J. 997 (A.C.M.R. 1979)The defendnat had no right to resist execution of a search warrant, even though warrant subsequently held to be invalid.

Use of deadly force

Deadly force may be employed to protect property only if (1) the crime is of a forceful, serious or aggravated nature, and (2) the accused honestly believes use of deadly force is necessary to prevent loss of the property. United States v. Lee, 13 C.M.R. 57 (C.M.A. 1953).

Reasonable force

While it is well established that a service member has a legal right to eject a trespasser from her military bedroom and a legal right to protect her personal property, the soldier has no legal right to do so unreasonably. United States v. Marbury, 56 M.J. 12 (C.A.A.F. 2001) (accused’s immediate return to her bedroom brandishing a knife for the purpose of ejecting her assailant was excessive or unreasonable force and hence unlawful conduct).

Prevention of Crime

bestmilitarydefensedefenseattorneys10.03.54PMcopyUnder military law a private person may use force essential to prevent commission of a felony in his presence, although the degree of force should not exceed that demanded by the circumstances. United States v. Hamilton, 27 C.M.R. 204 (C.M.A. 1959). While felony is not defined in the 2008 Manual for Courts-Martial, 18 U.S.C. § 1 (1) (1982) defines it as any offense punishable by death or imprisonment for a term exceeding one year.

Use of deadly force

United States v. Person, 7 C.M.R. 298 (A.B.R. 1953). The soldier on combat patrol was justified in killing unknown attacker of another patrol member where (1) victim was committing a felony in the accused’s presence, and (2) the accused attempted to inflict less than deadly force.